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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Sullivan [1832] NSWSupC 78

burglary - autrefois acquit - criminal procedure - reception of English law, jury - jury, military, whether a jury

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 15 October 1832

Source: Sydney Herald, 18 October 1832[1 ]

Monday.  The three Judges tooks their seats in banco this morning, when Jeremiah Sullivan, a soldier, who had been tried for burglary, but remanded to goal, in consequence of the Jury not being able to agree on their verdict, and who had been discharged by the learned Judge, was placed at the bar. On a former day the case had been argued whether there was, according to law, such a necessity for discharging the Jury, that the prisoner could be again tried.  The Chief Justice delivered the opinion of the Court.  In the case of Jemeriah Sullivan, he and his learned brothers, had found considerable difficulties in coming to a conclusion, as to the expediency of carrying on the prosecution against the prisoner.  They would throw out, as a suggestion, that the prisoner should be discharged on his personal undertaking to appear at the bar of the Court when called upon.

The Attorney-General, in reply, observed, that at the time of arguing the case, he had been actuated, by a sense of duty, in wishing the prisoner to be put again upon his trial, at which time several improper observations had been applied to his conduct.  He wished their Honers to give an opinion upon this case, as it might be considered a precedent to bind other cases that might come before the Court.  Was he to consent to the discharge of the prisoner now, it might, from the observations that had been once made, be imputed to fear.

Chief Justice replied. - They could only look at the case as it was presented to them.  And the question on the law raised was, (the Jury having been discharged by direction of the Learned Judge) whether the prisoner could be again put upon his trial.  The considered it would be veryinexpedient to decide or give an opinion on that ground, and it would not be expedient to press them to disclose the grounds for their declining so to do.  With respect to the observations of a personal nature that had been alluded to - they regretted that any thing of private feeling should have been mixed up with the case: they were convinced that the Attorney General had manifested an upright and conscientious discharge of his duty - and the public were convinced that he had been guided by what he considered right principles; these points they could not take into consideration.  This case would not be a precedent, and they were of opinion that it would be inexpedient to press for a decision in this case.

Attorney General. - I cannot your honours, consent to the prisoner's being discharged from the information; I could not think of such a thing; but I have no objection to his being allowed to go at large on his recognizance.

Chief Justice. - Let the prisoner be discharged on his entering into a personal recognizance of £50 to come up when called upon by the Court or the Attorney General.


Dowling, Proceedings of the Supreme Court, Vol. 75, Archives Office of New South Wales, 2/3258


[p. 11] [Note.  This judgmt was not delivered.  It was agreed amg[2 ] the Judges, that the AG. shd. consent to the prisr being discharged on his own recognizances to come up when called upon - consented to]

The prisoner was charged with seven officers of his Majesty's Service nominated by the Governor, in pursuance of the N.S.W. act 9 Geo. 4. c. 83. s. to try him for a capital felony.  After the case was closed on both sides, and the Judge had summed up the evidence, the officers retired to consider of their verdict, and after being closeted for seven hours, the Senior officer in the names of himself and brother officers informed the Judge that they could not agree upon a general verdict of Guilty or Not Guilty, and that if they were confined for any length [p. 12] of time, even for a month, they were not likely ever to agree upon an unanimous verdict.  The attorney General as public prosecutor, sd he had no objection to the officer's being discharged, provided he was not restrained from persecuting the prisoner upon the same identical information before another Commission of seven officers.  The prisoner claimed as matter of right a general verdict of Guilty or Not Guilty.  The officers having been charged with him, but he had not objection to the Commissioners being discharged upon an undertaking by the Attorney General not to prosecute him again upon the same identical information.  The Attorney General refused to give any such undertaking, whereupon the Judge, acting upon the intimation of the senior officer [p. 13] that neither he nor the rest of the officers could ever agree upon a unanimous verdict, took upon himself in the extremity and novelty of the case to discharge the Jury from giving any verdict, reserving the question for the future consideration, whether the prisoner could be prosecuted again upon the same identical information.  The Attorney General having now intimated his intention of trying the same information against the prisoner before another Commission of seven officers, the question is whether it is competent for him to do so.

This is most undoubtedly a very important question, and one, I believe of the first impression in this Colony.  I do not however regard it as one of very great difficulty; and having reference to principle, I think it capable of [p. 14] easy solution.  In the absence of any express enactment of the legislature, and any precise precedent we are compelled to resort to principle for the determination of it.

Although in common parlance and popular phraseology the seven Commissioned officers nominated by the Governor for the trial of crimes and misdemeanours committed in New South Wales, are called a jury, upon the erroneous supposition that they are to all legal intendment, a jury, according to the ancient institution of that admirable tribunal in the Mother Country, yet it requires very little consideration, in order to shew that it has very few if any of the incidents of a jury strictly and properly so called, and understood by the law of England.

[p. 15] The legislature of the Imperial Parliament of the United Kingdom has created a peculiar tribunal for the trial of issues of fact in the criminal jurisdiction, of the Supreme Court wholly unknown and unprecedented in the Mother Country, and almost denuded of all analogy to the trial "perpais" a "by the Country" in the legal sense of that institution.  In the very outset, the institution of a Commission of officers in His Majesty's Service, who are transitory, and imigratory, is totally repugnant to the idea of the judicium pavirum, mentioned in the celebrated chapter of magna chartaupon this subject, when applied to a society of people governed by municipal laws.  But in almost in every other instance there is a want of keeping with, nay an absolute departure from the well known incidents of trial by jury understood and cherished by the British subjects.  They are nominated by the, [p. 16] Governor, they are not challegable to the array, nay they are challengable to the poll, only in the solitary case of direct interest or affection.  The magical number 12, is not to be found, as the qualification of this anomalous institution.  It is limited to seven, which at once marks down, all the ideas associated by an Englishman with the concurrent unanimity of a jury of twelve, before his prospects, liberty or life can be put in jeopardy.  It is wholly foreign from the present inquiry to go into the origin of that rule of the English law which requires concurrence of twelve to make a comfortable verdict; but I may be permitted shortly to advert to it.

The unanimity of twelve men, so repugnant to all experience of human conduct, passions and understandings, could hardly in any age have [p. 17] been introduced into practice, by a deliberate act of the legislature.  Accordingly it has not, and can only be, & is only founded in reason and caution, for the protection of property, liberty and life, unless there is the concurrence of twelve out of a larger number of persons chosen to determine the matter in issue.  This rule of practice has been transmitted to Englishmen other by the common law or from immemorial antiquity.  In ancient, times, the jury, now popularly so called, might consist of more than twelve.  This was so, of the Grand assize, though the verdict must have been given by 12 or more, & if twelve did not agree, the assize was afforced, that is others were added till the twelve did concur.  This was a majority & not unanimity.  Hale P. C. 2. c. 161.  A grand jury may consist of any number from 12 to 23 inclusive, but a presentment ought not to [p. 18] be made by less than 12.  The same is true also of an inquisition before a coroner.  In the High Court of Parliament, & the Court of the Lord High Steward, a pier may be consisted of the greater number, yet there can be no conviction unless the greater number consists at least of 12.  In a commission of lunacy 12 must join in the verdict though the jury be 17.  So a jury upon a act of inquiry may be more than 12 though 12 must concur in the verdict.  In all these cases if 12 only appeared, it followed as a necessary consequence, that to act with effect there must have been unanimous.  Thence it may be suggested (as Mr. Christian in his notes to the 3d vol of 12 lacks can. 377.) as a conjecture respecting the unanimity of juries, that as less than 12, if 12 or more were present, could pronounce [p. 19] no effective verdict, when 12 only were sworn, their unanimity became indispensable. 

But how can we adopt the reasoning applicable to the jury system of England, to a commission of seven officers of H.M.S. on full or half pay, nominated by the authority of an Act of Parliament as a peculiar mode of trying issues of fault in New South Wales?

I will not go into the question whether a verdict by a majority of the seven officers, would be good and valid; but assuming it to be essential that the seven should be unanimous, which, I believe was ever hitherto been considered in this Colony they should be, what course is left open to the Court, if the seven tell the Court that they can never agree upon an unanimous verdict?  Are they to be starved into concurrence - is the public justice of the country to be defeated by their [p. 20] disunion of mind - is the accused, if he be innocent never to be relieved from the imputation of crime, because there is no unanimous consent to his acquittal?  Suppose the gentlemen in this instance, had been constrained into concurrence in an unanimous verdict, by imprisonment, loss of rest, meat, drink and candle light, of what value would their verdict be, whether guilty or not guilty.  These gentlemen informed the court upon their oaths, that they could never agree.  It came then to a mere question of human endurance and suffering, for if the judge had confined the gentlemen until some of them dropped from fatigue or physical incapacity to endure, hunger, thirst, and cold, he must [p. 21] at last have been driven to the necessity of discharging them, without delivering a verdict, and causing the prisoner to be remanded for trial by another set of officers.  In this country we have not the alternative provided by the ancient practice of the common law, by which it has been held that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.  Here we have no circuit towns - the jurisdiction of the Supreme Court is coextensive with the whole of New South Wales, and certainly it would very inconvenient for the judge to carry the quasi jury home to his own house, and see them [p. 22] perishing under his eye, without being permitted to show them the hospitality of even bread & water.  This therefore is one of those unforeseen contingencies, which must be regulated by analogy and principle.  It has been holden that if a prisoner is taken ill during trial after the jury are charged with him, he may be remanded until he recovers, and be then tried by a new jury.  So if any of the jury are taken suddenly ill, after being once charged, fresh jurors may be sworn in their place instead of those who have become incompetent, & the trial proceeded as before.  These are unforeseen accidents which can only be provided for the dictates of common sense & reason.  Suppose at the end of a long trial it is discovered [p. 23] that a deaf & dumb man, or a lunatic or an idiot, has by some accident been sworn on the jury, and consequently there can be no unanimous verdict of the jury empanelled, what alternative has the Court left, but to discharge the jury and cause the prisoner to be tried again.  Cases may, possibly, but I am sure are not likely to arise, in which a juror may go into the box with his pockets stuffed with viands, determined to starve out his fellows into compliance with his preconceived impressions upon a case which he may be called upon to try.  It may happen that a juror will hear only such parts of the evidence as suits his wishes how the case should go, & reject, or be deaf to the rest.  Or multitude of instances of like kind might be put, shewing the repugnance to common sense and humanity, of that rule which requires the concurrence of the jury by prostrating their reasoning faculties under the operation of physical suffering.  If this jury after being confined for seven hours in deliberation upon a very simple case could not agree in a general verdict, it is highly improbable.

No verdict delivered.

2 Hale P. C. 294.

Cur. adv. vult.



[1 ] See Sydney Herald, 6 August 1832; Sydney Gazette, 7 August 1832; Australian, 10 August 1832; Dowling, Proceedings of the Supreme Court, Vol. 72, Archives Office of New South Wales, 2/3255, p. 135.  See also Sydney Gazette, 4 September 1832; Australian, 7 September 1832; Sydney Gazette, 18 September 1832.

[2 ] among

Published by the Division of Law, Macquarie University